Экзамен зачет учебный год 2023 / The New German Law of Obligations_REINHARD ZIMMERMANN

C.Codex

D.Digesta

1

The German Civil Code and the Development of Private Law in Germany

I. The Codification Movement in Europe

The codification of private law from the late eighteenth century onwards is regarded, very widely, as a turning point in the development of private law in Europe.¹ Obviously, some of the more naïve expectations entertained by intellectuals of the Age of Enlightenment have not been fulfilled: the codifications have neither made the learned lawyer redundant, nor have they led to a lasting consolidation (or ossification) of private law. They have, however, significantly contributed to the national fragmentation of the European legal tradition: for codification constitutes a piece of legislation which is applicable only within the confines of the territory for which the body responsible for legislation is competent to legislate. There had been signs of such fragmentation at the time of the usus modernus pandectarum in the seventeenth and eighteenth centuries when the ‘institutional’ writers had no longer discussed Roman law as such but Roman-Dutch or Roman-Scots law, ius romano-hispanicum or ius romanosaxonicum.² But it had always been clear that these were merely regional or national variations of a common theme: different manifestations of one and the same legal tradition. With the enactment of the codifications this began to change. The awareness of a fundamental intellectual unity got lost and legal scholarship degenerated, in the much-quoted words of Rudolf von Jhering, to a national discipline the intellectual boundaries of which coincided with the political ones.³

At the same time, the codifications brought to an end the ‘second life’ of Roman law, i.e. the story of its practical application in Europe. Since the days

¹ See Reinhard Zimmermann, ‘Codification: History and Present Significance of an Idea’, (1995) 3 European Review of Private Law 95 ff. (with further references).

² Klaus Luig, ‘The Institutes of National Law in the 17th and 18th Centuries’, [1972] Juridical Review 193 ff.

³ Rudolf von Jhering, Geist des römischen Rechts auf den verschiedenen Stufen seiner Entwicklung, vol. I, 6th edn. (1907), 15. Jhering regarded this state of affairs as ‘humiliating and undignified’.

of the ‘reception’ Roman law had provided the basis for the administration of justice in western and central Europe and had become a ius commune, or common law. In the process, it had been subject to considerable change; in particular, it had absorbed many elements of canon law, indigenous customary law, mercantile custom, and natural law theory. The usus antiquus of Roman law had thus been transformed into a usus modernus pandectarum. Yet, a string of authors from François Hotman to Hermann Conring and Christian Thomasius had started to shake the authority of Roman law: of a law that had given rise to intricate doctrinal disputes, that was wedded to outdated and impracticable subtleties, and that had been enacted by the despotic rulers of past ages. Also, since Roman law was applicable only in subsidio, countless more specific territorial or local laws could govern a particular dispute. The great number and complexity of legal sources contributed to a widespread feeling of legal uncertainty and inefficiency as far as the administration of justice was concerned. The codifications were supposed to tidy up this messy situation: they were to provide a systematic regulation of the entire private law, ousting all rival sources including, in particular, the ius commune. Thus, Article 1 of the Dutch Abrogation Act (Afschaffingswet) provided, in a phrase suffused with fear, relief, and elation: ‘The legal validity of Roman law is and remains abrogated.’

II. The German Civil Code as a Late Fruit of

the Codification Movement

The German Civil Code is a comparatively late fruit of the codification movement. The three great natural law codifications in Prussia, France, and Austria had been prepared in the late eighteenth and early nineteenth centuries. They were intended to satisfy the desire for territorial legal unity. The Code civil, in

The standard account is Franz Wieacker, A History of Private Law in Europe (1995) (transl. Tony Weir); cf. also Paul Koschaker, Europa und das römische Recht, 4th edn. (1966) (on the significance of Roman law for European legal culture); Helmut Coing, Europäisches Privatrecht, vol. I (1985); vol. II (1989) (on the history of private law doctrine); Peter Oestmann, Rechtsvielfalt vor Gericht (2002) (on early modern German court practice). For an overview, see Reinhard Zimmermann, ‘Roman Law and the Harmonization of Private Law in Europe’, in Arthur Hartkamp et al. (eds.), Towards a European Civil Code, 3rd edn. (2004), 21 ff.

The expression took root as a result of Samuel Stryk’s work Specimen usus moderni pandectarum, Halae (1690–1712); see Klaus Luig, ‘Samuel Stryk (1640–1710) und der “Usus modernus pandectarum” ’, in Die Bedeutung der Wörter: Studien zur europäischen Rechtsgeschichte, Festschrift für Sten Gagnér (1991), 219 ff.

The Afschaffingswet was dated 16 May 1829; for all details, see Hendrik Kooiker, Lex Scipta Abrogata: De derde renaissance van het romeinse recht, vol. I (1996).

II. The German Civil Code as a Late Fruit of the Codification Movement 7

particular, had thus become a potent symbol for the one undivided nation that had emerged from the upheavals following 1789. In the course of the nineteenth century, however, most of the other states of central, southern, and western Europe had codified their private law. Predominantly, the Code civil had been the source of inspiration. It continued to apply in Belgium and became the basis of the Dutch Burgerlijk Wetboek of 1838. It provided the point of departure for the Italian Codice civile of 1865 (which could thus be enacted a mere four years after the kingdom of Italy had come into being), for the Portuguese Código civil of 1867, the Spanish Código civil of 1888–89 and the Romanian Civil Code of 1865. The Serbian Civil Code of 1844, on the other hand, had been influenced mainly by the Austrian Code.

Increasingly, therefore, the legal position prevailing in nineteenth-century Germany was bound to look odd and anachronistic. The Prussian territories (including Westphalia, Bayreuth, and Ansbach) were governed by the Preußisches Allgemeines Landrecht. In the Rhine-Province, Alsace, and Lorraine the Code civil applied. The Grand Duchy of Baden had adopted the Badisches Landrecht which was based on a translation of the Code civil.¹ The Kingdom of Saxony enacted its own Civil Code in 1865. Some places in Bavaria lived according to Austrian law, while in parts of Schleswig-Holstein Danish law prevailed. Most of the remaining German territories (comprising, in 1890, close to 30 per cent of the population of the Deutsches Reich) still administered justice according to the ius commune. But the ius commune only applied in subsidio. Countless more specific territorial or local laws could therefore govern a particular dispute: from thirteenth-century texts like Eike von Repgow’s famous Sachsenspiegel to Baron von Kreittmayr’s Codex Maximilianeus Bavaricus Civilis of 1756, from the Neumünsterische Kirchspielgebräuche to the NassauKatzenelnbogensche Landesordnung.¹¹ Thus, for example, there were all in all more than one hundred different regulations concerning succession upon death. None the less, in the German territories, a fundamental intellectual unity had continued to persist throughout the nineteenth century. That unity

Jan Lokin, ‘Die Rezeption des Code Civil in den nördlichen Niederlanden’, (2004) 12 Zeitschrift für Europäisches Privatrecht 932 ff.

Generally on the reception of the French Code civil, see Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law, 3rd edn. (1998) (transl. Tony Weir), 98 ff.

See the contributions in Reiner Schulze (ed.), Französisches Zivilrecht in Europa während des 19. Jahrhunderts (1994), and in Reiner Schulze (ed.), Rheinisches Recht und Europäische Rechtsgeschichte

(1996); see also Elmar Wadle, Französisches Recht in Deutschland (2002).

¹ Elmar Wadle, ‘Rezeption durch Anpassung: Der Code Civil und das Badische Landrecht: Erinnerung an eine Erfolgsgeschichte’, (2004) 12 Zeitschrift für Europäisches Privatrecht 947 ff.

¹¹ For an overview of the laws applicable in Germany at the end of the nineteenth century, see ‘Anlage zur Denkschrift zum BGB’, in Benno Mugdan (ed.), Die gesammten Materialien zum Bürgerlichen Gesetzbuch für das Deutsche Reich, vol. I (1899), 844 ff.; and see Allgemeine Deutsche Rechtsund Gerichtskarte, 1896 (re-edited in 1996 by Diethelm Klippel).

was forcefully promoted by Savigny’s Historical School of Law and the pandectist legal scholarship that emerged from it.¹² Thus, the contemporary version of Roman law did not apply only in the areas still governed by the ius commune; even in the countries of codified law it provided the underlying legal theory.¹³ It provided the self-evident point of reference for understanding and assessing the codifications and territorial statutes. Therefore, it remained perfectly possible for a law professor to be called from Königsberg to Strasbourg, from Gießen to Vienna, or from Heidelberg to Leipzig. Nor were law students, as far as choice and change of universities were concerned, confined to the institutions of the state in which they later wanted to practise. Neither the Prussian Code, nor the Code civil or the Saxonian Civil Code, became the focal point for the legal training offered in the universities of the respective states.¹ Just as the codified laws had at first been neglected, and subsequently been pandectified, by contemporary legal scholarship, they constituted hardly more than an appendix to the courses on Roman private law in the curricula of nineteenthcentury law faculties.¹

III. The Programme of ‘Historical Legal Science’

Our perception of nineteenth-century pandectist ‘legal science’ has been coloured, for a long time, by the exaggerations of those who attempted to break away from it and from the ‘conceptual jurisprudence’ established on that basis. Thus, a scholar like Georg Friedrich Puchta is only slowly beginning to emerge from the shadow cast by the pre-eminence of Savigny.¹ Jhering’s work cannot be apportioned as easily, as once thought, into two different periods, separated by a ‘conversion’ from conceptual to functional jurisprudence. And even Bernhard Windscheid, the embodiment of pandectist scholarship in the second half of the nineteenth century (‘Legal scholarship means pandectism, and pandectism means Windscheid’) not only regarded himself as the servant, but also as the master of the concepts.¹ True law, for Windscheid, was ‘strict but, at the same time, lenient; fixed and yet free; firm but also flexible’ (that corresponded to the ideal of classical Roman law), and the true jurist, in his view, was able, like the Roman jurists, ‘to serve his concepts and freely to rise

¹² For details, and references, see Reinhard Zimmermann, Roman Law, Contemporary Law, European Law: The Civilian Tradition Today (2001), 11 ff. ¹³ Koschaker (n. 4) 292.

above them’.¹ The programme of ‘historical legal science’, as it had been developed by Savigny at the beginning of the century, had also been characterized by a certain tension. For while the emphasis of an organic connection between contemporary law ‘and the entire past’¹ led to a discovery of the modern discipline of legal history (previously there had only been ‘legal antiquities’),² Savigny ultimately aimed at legal (rather than historical) scholarship, i.e. the establishment of a legal doctrine which, though developed ‘historically’, was in conformity with contemporary requirements.²¹ Thus, in the preface to his System des heutigen Römischen Rechts (System of Contemporary Roman Law) Savigny emphasized the need ‘firstly, to trace and establish, within the entire body of our law, what is . . . of Roman origin, in order not to be unconsciously dominated by it; but then our approach aims at eliminating, among these Roman elements of our intellectual formation, whatever has in fact withered away and merely continues to lead a troublesome shadow life as a result of our misunderstanding’.²² The main task of a scholar in private law, he writes at another place, ‘is the intellectual penetration, adaptation and rejuvenation’ of the legal material as it has come down to us.²³ Savigny’s vision of an ‘organically progressive’ legal scholarship,² based on a uniform body of sources, guided by the same methodological convictions, and common to the whole nation—for Windscheid this was ‘a revelation’² —led to a heyday of legal scholarship in Germany. It constituted the intellectual foundation for the emergence of a national community of scholars, of German legal unification on a scholarly level. At the same time, pandectism secured the leading place for Germany in the world of nineteenth-century legal scholarship; it was much admired by lawyers all over Europe and exercised significant influence on the legal development in countries such as France, Italy, and Austria.²

¹ Bernhard Windscheid, ‘Das römische Recht in Deutschland’ (1858), in idem, Gesammelte Reden und Abhandlungen, ed. Paul Oertmann (1904), 48 ff.

¹ Friedrich Carl von Savigny, ‘Ueber den Zweck dieser Zeitschrift’, (1815) 1 Zeitschrift für geschichtliche Rechtswissenschaft 3.

² Koschaker (n. 4) 269. On the ‘discovery of legal history’ in the nineteenth century, see Wieacker (n. 4) 330 ff.

²¹ On Savigny’s conception of legal science, see Joachim Rückert, Idealismus, Jurisprudenz und Politik bei Friedrich Carl von Savigny (1984).

²² Friedrich Carl von Savigny, System des heutigen Römischen Rechts, vol. I (1840), xv.

²³ Savigny, (1815) 1 Zeitschrift für geschichtliche Rechtswissenschaft 6.

² Friedrich Carl von Savigny, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft, 1814, easily accessible in Hans Hattenhauer (ed.), Thibaut and Savigny: Ihre programmatischen Schriften, 2nd edn. (2002), 126.

² Bernhard Windscheid, ‘Recht und Rechtswissenschaft’ (1854), in idem (n. 18) 16.

² For France, see Alfons Bürge, Das französische Privatrecht im 19. Jahrhundert (1991); for Austria: Werner Ogris, Der Entwicklungsgang der österreichischen Privatrechtswissenschaft im 19. Jahrhundert

(1968); for Italy: the contributions in Reiner Schulze (ed.), Deutsche Rechtswissenschaft und Staatslehre im Spiegel der italienischen Rechtskultur während der zweiten Hälfte des 19. Jahrhunderts (1990).

An obvious paradox inherent in Savigny’s programme that has repeatedly been noted consisted in the emphasis on Roman law as the basis for a contemporary theory of private law. It ill matched the idea of law as being the product of the spirit of the people (Volksgeist). The phenomenon of the ‘reception’ could only be explained in a very tortuous way on that basis.² A second problem arose from Savigny’s partiality for the pure and undiluted Roman law, corresponding to the educational principles of contemporary humanism and the aesthetic ideas of classicism.² It entailed a somewhat disdainful attitude towards the immediately preceding period of the usus modernus pandectarum and a negative, and essentially unjust, evaluation of the work of the medieval Commentators whose mos italicus had paved the way for the usus modernus. This attitude was not easily reconcilable with a programme that was fundamentally based upon the notion of ‘organic growth’ and insisted on ‘the even and dispassionate recognition of the value and individuality of every age’.²

IV. ‘Historical Legal Science’ and Codification

Moreover, there was, within the Historical School, an ambivalence towards the question of codification that was never quite resolved. The ‘founding manifesto’³ of the Historical School was Savigny’s reply to A.F.J. Thibaut’s call to end the intolerable and inconvenient diversity of private laws prevailing in Germany by adopting a General German Civil Code, modelled on the French

Code civil.³¹ In his famous essay entitled Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (Of the Vocation of our Time for Legislation and Legal Science) Savigny not only rejected the idea of a codification to be drafted and enacted hic et nunc, but criticized the very notion of a codification as inorganic, unscientific, arbitrary, and hostile to tradition. At best, it was unnecessary; at worst it would distort and stifle ‘organic’ legal development.³²

None the less it was widely accepted, from about the middle of the nineteenth century, that a codification of private law in Germany was about to come and was to end the direct application of Roman law. Theodor Mommsen in 1848 voiced the German nation’s desire for the creation of a uniform and national law,³³ and Rudolf von Jhering predicted in 1852 that his own generation of